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President Obama Signed the National Defense Authorization Act - Now What?

President Obama signs the National Defense Authorization Act after months of debate.

One thing I love about writing on technology is that it’s a subject always filled with hope and optimism. For every frightening use of technology by oppressive governments there’s a corresponding story about the use of that same technology to overcome oppression.

For every story of police abuse I’ve read, there’s another story about corruption and violence exposed by something as simple as a camera phone.

But can technology help us overcome truly pernicious legislation like the National Defense Authorization Act recently signed by the president?

The National Defense Authorization Act greatly expands the power and scope of the federal government to fight the War on Terror, including codifying into law the indefinite detention of terrorism suspects without trial. Under the new law the US military has the power to carry out domestic anti-terrorism operations on US soil.

“The fact that I support this bill as a whole does not mean I agree with everything in it,” the president said in a statement. “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”

Worse, the NDAA authorizes the military to detain even US citizens under the broad new anti-terrorism provisions provided in the bill, once again without trial.

There is some controversy on this point, in part because the law as written is entirely too vague. But whether or not the law will be used to indefinitely detain US citizens domestically, it is written to allow the detention of US citizens abroad as well as foreigners without trial.

“Obama’s signing statement seems to suggest he already believe he has the authority to indefinitely detain Americans—he just never intends to use it,” Adam Serwer writes at Mother Jones. “Left unsaid, perhaps deliberately, is the distinction that has dominated the debate over the defense bill: the difference between detaining an American captured domestically or abroad. This is why ACLU Director Anthony Romero released a statement shortly after Obama’s arguing the authority in the defense bill could “be used by this and future presidents to militarily detain people captured far from any battlefield.”

The NDAA Makes the Status Quo Worse

Glenn Greenwald makes a compelling case that the law gives the government truly frightening powers. He notes that section 1022 exempts US citizens from the requirement of military detention but still leaves the option open to the state.

“The only provision from which U.S. citizens are exempted here is the“requirement” of military detention,” Greenwald writes. “For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.”

“The most important point on this issue is the same as underscored in the prior two points: the “compromise” reached by Congress includes language preserving the status quo,” he continues. “That’s because the Obama administration already argues that the original 2001 AUMF authorizes them to act against U.S. citizens (obviously, if they believe they have thepower to target U.S. citizens for assassination, then they believe they have the power to detain U.S. citizens as enemy combatants). The proof that this bill does not expressly exempt U.S. citizens or those captured on U.S. soil is that amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected. The “compromise” was to preserve the status quo by including the provision that the bill is not intended to alter it with regard to American citizens, but that’s because proponents of broad detention powers are confident that the status quo already permits such detention.”

In part the National Defense Authorization Act helps to preserve the status quo established a decade ago with the original provisions in the PATRIOT Act giving the government broad new powers in the so-called War on Terror. In part the bill expands those powers, codifying the use of indefinite detention of foreign nationals and possibly US citizens arrested abroad and at home. In part the bill expands the use of the US military on domestic soil, at once complicating anti-terrorism strategies at home and raising serious questions about the role of the military in law enforcement.

All these things should make Americans – and not just Americans – very nervous about the preservation of their civil liberties. That precarious balance between security and liberty is looking ever more tilted toward the former and away from the latter.

The History of Anti-Terrorism is Bad News for Civil Liberties

Just as troubling, these laws suggest that the legal apparatus available to us is insufficient to the task. While due process may work for any other criminal act, terrorism is unique and requires new and expanded powers that ignore the Constitution. These powers are necessary until “hostilities end” – as though terror itself can ever be extinguished.

In the 1970′s the British government began passing a series of anti-terrorism laws that did many of the same things the US government has done since 9/11. At the time, detention without charge was expanded to seven days. Various other powers of arrest and detention were written into law, and these provisions were expanded gradually through the 1980′s as the British government continued to wage its war against the Irish Republican Army.

Far from wiping these laws from the books when the IRA disarmed, many of these laws were simply reinforced by the 2001 Anti-Terrorism, Crime and Security Act and the 2005 Prevention of Terrorism Act.

The problem with fighting a war on terror is that it’s in many ways a war on ideas. The IRA may have disbanded, but that didn’t stop terror from taking a new shape in the form of Al-Qaeda. Britain’s struggle against Irish dissidents may have been a good excuse for earlier anti-terror legislation, but Islamic radicalism is just as potent a threat.

You Can’t Wage a War on an Idea

In the United States the Cold War had barely ended before the threat of terrorism replaced it and, in some ways, became an even more urgent reason to expand government power at the expense of privacy and civil liberties. Unlike the Cold War, Americans have actually died in the War on Terror. Also unlike the Cold War, the enemy we face is not embodied in another country or people, but rather in a form.

Terrorism is a tactic, not a state. It is used to create overreaction in its targets. The initial reaction by the US government to the 9/11 attacks was understandable but wrong-headed. Over a decade after that national tragedy, the government is still overreacting. Each time we allow our fear to undermine our freedom we concede to the very terrorists we hope to defeat.

“The legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial,” said Sen. Bernie Sanders in a statement. “This bill also contains misguided provisions that in the name of fighting terrorism essentially authorize the indefinite imprisonment of American citizens without charges. While we must aggressively pursue international terrorists and all of those who would do us harm, we must do it in a way that protects the Constitution and the civil liberties which make us proud to be Americans.”

Technology, Social Media, and Grassroots Activism Online Can Help Combat Bad Legislation

Support for the National Defense Authorization Act is decidedly bipartisan. Opponents like Senator Sanders (an independent who describes himself as a socialist) and Rand Paul (a Republican and a libertarian) also come from both sides of the aisle.

The same people tend to be opponents of other civil-liberty-quashing bills like the Stop Online Piracy Act and the Protect IP Act, two bills being debated in congress which would give the government and the industry sponsors of the bills broad new powers over the internet and freedom of speech online.

To me, this underscores the need to look beyond politics as usual.

Technology is changing the way institutions, governments, and individuals interact. The symmetry of power is shifting and governments and non-state actors alike are scrambling to keep up. Sometimes this creates real security threats.

Hacking outfits like Anonymous present a real challenge to governments and corporations. At times these groups may act honorably, attempting to expose corruption. At times they may act without such noble intentions. Either way there is no denying that security is an issue going forward and that the overreaction of governments to a myriad security risks poses its own set of problems and challenges.

I’ve written in the past that people concerned with civil liberties should begin to walk away from the old left-right dichotomy entirely and focus on electing civil libertarians to congress whether these are members of the left like Russ Feingold or of the right like Rand Paul. Of course, both Paul and Feingold will fall short of the ideal civil libertarian when it comes down to it, but both are a far cry better than 90% of their colleagues.

We have few options available to us at this point. The NDAA may be challenged in the courts, and this will almost certainly happen if the president (or a future president) actually makes use of the powers related to US citizens. Even then, however, the courts could come down on either side. The Supreme Court is not exactly filled to the brim with civil libertarians.

Until that time, however, we can try to abandon politics-as-usual and focus on electing politicians who care more about curtailing government excess than expanding government power endlessly in our never-ending War on Terror. And we can use technology, social media, and other tools at our disposal to act outside of politics altogether to work to create alternate institutions and communities.

Look at what Reddit has done with its boycott of GoDaddy.com – now the online community is planning to unseat a congressman (or two or three) over the SOPA/PIPA legislation. The power of online activism is only just emerging. Technology may only be a tool, but I think we’ll discover that it’s a powerful one.

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Americans must not be distracted by Corporate Fascist Puppet Barack Obama saying “my Administration will not authorize the indefinite military detention without trial of American citizens” in his signing statement for the National Defense Authorization Act of 2012 (H.R.1540). Presidential “signing statements” are political propaganda with no Constitutional basis. A President who breaches a signing statement covenant faces no more consequences than any other corrupt politician who renegs on a promise. By signing NDAA and attempting to give its unconstitutional provisions the force of law, Barack Hussein Obama became complicit with all of the bought-and-paid-for U.S. Senators and Representatives who voted for this bill, and along with them should be charged with Seditious Conspiracy under U.S. Code Title 18 Part I Chapter 115 Section 2384. Unless and until these vermin are arrested, charged and removed from office, I will no longer consider the government they infest to be legitimate. Nor will I respect any ruling to the contrary from a judicial system that grants rights of citizenship to corporate entities that treat settlements and penalties for criminal conduct as costs of doing business with no concerns about incarceration or execution to deter their illegal, immoral or unethical conduct.

You are right. This is no longer an election where each candidate must be weighed as an individual. We must throw Obama out of office and elect someone with the direct mandate to repeal this law. We did it in 1800 when we threw out John Adams for passing the tyrannical Alien and Sedition Acts and unconstitutionally imprisoning American citizens. Obama specifically requested these powers, despite any claims to the contrary. This is tyranny – and we must vote against it without question. http://www.tryfreedom.us/2012/01/01/today-america-died-the-national-defense-authorization-act-and-you/

Why isn’t this on the front page. It’s listed as under bieng ‘tech’ but isn’t even on the tech front page.

You/Forbes did a very good job on this article. It’s a critical issue, but it’s placement makes more suspicion as to why media is not running this where people can see it. Only if you search ndaa here or on the web does it come up.

Why not put it where people see what’s happening. who aren’t necessarily looking for it. This bill is a travesty. We must vote Out Every congress/senate rep who voted for this. Run for Congress, Start a Recall, Montana is doing just that.

Does Barack Obama represent the End Game for America? Your Daddy Thinks So. Oops! US Government post Classified Document Revealing Plans to Wage War on Americans-read it for yourself…

One more bill to REPEAL the DAY the new prez gets into office -President Obama Signed the National Defense Authorization Act – Now What? WHY DO WE EVEN NEED THIS BILL-???“The legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial,” said Sen. Bernie Sanders in a statement. “This bill also contains misguided provisions that in the name of fighting terrorism essentially authorize the indefinite imprisonment of American citizens without charges. While we must aggressively pursue international terrorists and all of those who would do us harm, we must do it in a way that protects the Constitution and the civil liberties which make us proud to be Americans.”

The problem with challenging NDAA’s indefinite detention clauses in the judiciary is that when you selectively suspended habeus corpus there is no way of knowing who was detained, where they are being held, by whom, what the charges are, and for what period of time they’ve been held. For all practical purposes, that person simply no longer exists to anyone. In other words, by suspending habeus corpus the specific case that would be used challenge NDAA is by necessity indefinitely obscured along with the “belligerent.”

It’s odd indeed that legislation so contrary to the core constitutional values we hold dear is left unchallenged by the Fourth Estate (aka, the 4th branch of government, the media). To largely remain tacit on this key issue, the collective media makes a mockery out of their role to inform society. And helps to render the civics education of our children a farce.

Additionally, the USA no longer has the moral, and ideological, high ground to openly criticize the oppression and lack of civil rights in places like China and Russia, who the US criticizes for the detention of their dissidents.

Your article perfectly described the bill and its ramification; but the problem isn’t your article. The problem is that this piece of news should be dominating this news cycle, and it’s not.

H.R. 1450 is a bill that is passed every year. It is the National Defense authorization act. It is a massive bill that impacts most areas of our government spending. This one provision was ‘slipped in’. This created a no win scenario–for all Americans. It was a deceptive political move used in many arenas when a bill will not stand alone.